Indian Country

Time to Renounce the Doctrine of Discovery

Not much reason amid all the attention on reaching a debt deal that most people, including in the media, would have paid any attention to a meeting of the U.S. Senate Committee on Indian Affairs. Not much reason ever, by normal lights. Still, the happy advent of Gay marriage in New York managed to catch the public attention. In contrast, Indigenous issues continue to be not simply unseen, beneath the radar and the lights, but actually to be seen in the wrong light.

There was, in fact, a June 9 Committee on Indian Affairs Oversight Hearing on Domestic Policy Implications of the UN Declaration on the Rights of Indigenous Peoples. Google it and you’ll be hard pressed to find any but Native links. Longtime Native rights advocate Peter d’Errico reported on the hearing for Indian Country Today.

What was the issue again?

Domestic Policy Implications of the UN Declaration on the Rights of Indigenous Peoples.

Why would there be implications? Because the Declaration explicitly acknowledges the historic crimes against Indigenous Peoples. In so doing, it implicitly points to the conceptual justification in history for those crimes: the Papal Bulls, beginning with the 1493 “Inter Caetera” of Pope Alexander VI, jointly known as the “Bulls of Donation.” ( Pope Alexander VI, by the way, and for fans of Showtime cable, is otherwise known as Rodrigo Borgia, an estimable figure upon whose judgment to found a half millennia of conquest and genocide.) From these Bulls was promulgated the Doctrine of Discovery, according to which the European nations justified their colonization of the Western Hemisphere and their physical and spiritual subjugation of its existing populations.

As I wrote in “The Legal Justification for the Native Conquest,” the Discovery Doctrine, by which the European nations rationalized their policies, was adopted by the succeeding United States of America, explicitly in the little discussed Supreme Court case, Johnson v. McIntosh. In the Court’s decision, Chief Justice John Marshall declared that the U.S. had become a successor in the right of “discovery” acquiring the power of “dominion” over the lands to which it claimed sovereignty from Great Britain. This decision is the basis for all subsequent U.S. Indian law.

What d’Errico noted about the June 9 meeting were the numerous evasions among the non-Natives who testified regarding the ultimate source of those domestic policy implications. Considerations of self-governance and slow U.S. action in taking a leadership role on the rights of Native people (or even signing the Declaration) went unexplained.

The third expert witness, a law professor from the University of Oklahoma, said the UN Declaration had been “500 years coming,” but did not mention the Doctrine of Christian Discovery in his call for a “reconsideration of fundamentals.” …Again without specifying why, he said self-governance under federal Indian law “is inconsistent with the UN Declaration.”

Why might there be some reluctance to fully articulate the fundamentals that bear reconsideration?

At the Summit of Indigenous Nations held in Bear Butte, South Dakota in 2006, one of the several declarations dating back to 1991 was made calling on the Catholic Church to renounce the Doctrine of Discovery. However, any renunciation by the Church of the Bulls of Donation, and thus the doctrine derived from them, would call into question what is not even discussed in the U.S.: the moral bankruptcy of Johnson v. McIntosh. Imagine, though, if the reasoning and morality of Dred Scott v. Sandford had not been rejected well over a century ago – a civil war fought – and were still accepted in the U.S.

As I argued in “Aboriginal Sin,” this civil rights, this human rights, struggle in the U.S. will be the hardest of all.

It maybe that in this way and others, Native Americans remain for the American polis—and indigenous peoples everywhere for the dominant cultures—radically other. In all these ways they are different from those who conquered and continue to dominate them, and despite the choice of some individual Indians to assimilate, as groups Native Americans do not seek to end this difference. While hyphenated Americans of every kind may retain or seek to reclaim some essential cultural forms, or merely the customary trappings of their origins, they have always ultimately assimilated. But Native American is not hyphenated; the Native is unalterably prior and unassimilable. Whenever Indians assume and act out their native cultural selves, they express not a variation on a human theme, but a different human theme. They remind us that they were not an element in the great, historically evolving American amalgam, but the original state to which that amalgam was applied, and which has been overwhelmed by it, yet continues to resist it. They remind us, uncomfortably, how this all began.

They remind us, so uncomfortably, that this land was not – by any non-existent right of Discovery – naturally ours.

I know from many arguments with the recalcitrant and the politically conservative what are the resistant arguments. Of course, the great migrations of European and then other peoples to the Western Hemisphere and more lands beyond it cannot be undone. But we can acknowledge the truth of how these migrations occurred. For conservatives, no topic concerns and riles them more than that of responsibility. They are, in argument, stunningly incapable of distinguishing between responsibility as guilt and responsibility as obligation and of making any distinction between personal responsibility and national, collective responsibility. They will even argue that modern moral judgments on past human behaviors are anachronistic.

However, renouncing the Doctrine of Discovery and overturning Johnson v. McIntosh require no such imposition of contemporary moral values on the past. (Even though, I believe, the general conservative position is that the greater moral values are absolute, not relative to culture, place, or …time. But that’s an argument, again, for another day.) All that is required is that we declare that we do not believe these things, and no longer hold these values, now – in which cases, there is no reason, for the Papal Bulls, the Doctrine, or the Supreme Court Decision to stand.


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Indian Country

Honest Injun

President of Bolivia Addresses Indigenous Foru...
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It can be difficult to assess progress in the movement to recover from the history and consequences of indigenous culturcide. Great symbolic and conceptual achievements are growing. In the former category is the Australian apology to its aboriginal population. In the latter is the 2007 U.N. Declaration on the Rights of Indigenous Peoples. Bolivia, a nation populated by an indigenous majority and led by Evo Morales, an Aymara native, incorporated the principles of the Declaration into national law. Ecuador, with a population roughly 30% indigenous, incorporated many sentiments of the Declaration into its new 2008 constitution – expressions of respect both for the dignity of Ecuador’s indigenous cultures and practices and for nature.

{{pt}}Presidente eleito do Equador, Rafael Cor...
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Sentiments and expressions are a foundation, but they are not reform in action. The 2008 Ecuadorean constitution does not require consultation with native peoples on the use of resources, though consultation is called for in the Declaration. The constitution does say that the priorities for use of water resources are first, human consumption; second, irrigation for food production and the maintenance of river flow to keep ecosystems alive, and finally productive activities. As Inter Press Service reports, however, the Rafael Correa government’s new water reform bill is respecting neither the required water priorities nor the concerns of the native peoples that the priorities be respected. In response, the Ecuadorean Confederation of Indigenous Nationalities (CONAIE) is marshaling forces for massive protest.

The legislature was set to continue debating the bill Thursday. “We are open to dialogue, but we aren’t going to modify a single thing under pressure,” said Rolando Panchana, a legislator from the Movimiento País governing coalition.

Proponents of the water reform say it will regulate private water use and guarantee access to water by all citizens.

Vaca said around 25,000 police would be deployed nationwide “to protect the peace and guarantee citizen safety,” and that the necessary measures would be taken to maintain public order around Congress and elsewhere in the country.

The police chief said that protesters from outside Quito would not be kept from entering the city and holding peaceful demonstrations, but that the police would use the necessary force in the case of disturbances.

According to Tenesaca, if the high-level committee demanded by CONAIE is not set up, the protests will spread to the rest of the country.

“This is the final battle. We aren’t going to back down,” he said.

Closer to home, Elouise Cobell, in her regular news updates on progress, or the lack of it, in the Individual Indian Money Trust Fund settlement (Cobell v. Salazar), congressional ratification of which has now been extended five months past the original target date.

The deadline for Congress to enact legislation has been extended by order of the district court to May 28, 2010 and many beneficiaries also have asked how they can contribute to a successful resolution of this case.  I always have said that you need to call or write your Senators and Representatives in Congress to let them know how you feel about the settlement.  We have now uploaded a form letter that you can update with your representatives’ information and send to them.  This form letter can be uploaded by clicking here:

Contact information for your representatives can be located here:

We need all the help we can get and your letters and calls to Congress are being heard. Thank you, in advance….

It is unfortunate that Senator Barrasso from Wyoming (Vice-Chairman of the Senate Committee on Indian Affairs) has come out against settlement of this long-running litigation which is of utmost concern to Indian Country.  On April 27, 2010, Senator Barrasso sent a letter to all tribal leaders proposing to change the settlement agreement because he says that his changes would “improve the settlement.”  That is not true.  The Senator and his staff know that their proposed changes are material and necessarily would kill the settlement that we have worked so hard to reach. What is particularly disappointing to me is that I sat down with Senator Barrasso in his office to discuss the terms of settlement.  The only major issue he raised in our meeting was the reasonableness of the agreed-upon attorneys’ fees, which I said are low because of the size of the recovery and the hard work done by our counsel.  He looked me in the eye following my explanation and told me to my face that the settlement is OK with him. In fact, his attorney, who sat across from me, told him that the attorneys’ fees are fair.   Frankly, the attorneys’ fees are very low – a maximum of 3% of our recovery – compared to the 25%-40% and more that attorneys typically are paid when they successfully sue bad doctors for medical malpractice.  Think of the amount of time our lawyers have spent on this case (14 years) and the risk they took to achieve for you the largest settlement with the government in history. [Emphasis added]

Senator Barasso, at the hoped for end of a fourteen-year litigation, settlement of which has been agreed to by plaintiff and the many Native interests she represents, is holding it up, would you believe, in what he claims to be their better interest – even after he formerly expressed approval of the deal and is told his recommended changes will kill the settlement.

But he cares about the Indians. Really. He does. He’s on the Senate committee. Why would we doubt him?


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